State v. Moore

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1351
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA13-1351 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Person County Nos. 12 CRS 50508-11 ISAAC WALTON MOORE

Appeal by Defendant from Judgments entered 21 August 2013

by Judge Henry Hight in Person County Superior Court. Heard in

the Court of Appeals 19 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General Kimberley A. D’Arruda, for the State.

Mark Montgomery for Defendant.

STEPHENS, Judge.

Factual Background and Procedural History

On 9 April 2012, Defendant Isaac Walton Moore was indicted

on four counts of statutory rape/sex offense. The case came on

for trial on 19 August 2013 and a verdict was rendered the

following day. The evidence at trial tended to show the

following: -2- Between August of 2010 and November of 2011 Defendant lived

with his wife and stepdaughter, Audrey.1 Audrey was between

thirteen and fourteen years old at the time, and Defendant was

between fifty-two and fifty-three years old. Though Audrey and

Defendant sometimes had a good relationship, Defendant would

often “bother” her. According to Audrey, this involved going

into her bedroom, sitting on her bed, and “touching” her.

Sometimes Defendant would rub Audrey’s shoulders and back. On

two separate occasions, Defendant started “going down my back

and touching me between my legs and putting his hands underneath

my skirt.” If Audrey tried to move away, Defendant moved closer.

Defendant eventually removed Audrey’s shirt, “played with my

pants,” and put his hands between Audrey’s legs. Defendant then

put his mouth on Audrey’s “private parts,” put his penis inside

her vagina, and put “fake penises” inside her vagina.

Defendant told Audrey not to tell her mother about what had

happened. He also bought her gifts in an attempt to procure sex.

Audrey refused the offer, saying, “No. Not ever again, and I

just ran in my room.”

In an attempt to deter Defendant’s advances, Audrey began

to neglect her hygiene. This became an issue with her mother,

1 A pseudonym is used to protect the juvenile’s identity. -3- and, shortly after Defendant offered Audrey gifts for sex,

Audrey and her mother had an argument about Audrey’s hygiene. In

order to explain her failure to keep clean, Audrey revealed what

Defendant had been doing. The mother became upset and called the

police.

This was the second time that Audrey had reported

Defendant’s actions. The first time was in 2008 in Virginia. In

that instance, authorities were unable to find any evidence to

support Audrey’s statement, and Audrey became worried that she

would not be believed. As a result, Audrey retracted her

statement against Defendant. Following Audrey’s argument with

her mother and the subsequent revelation about Defendant’s

actions, however, Audrey stated that her first accusation, made

in Virginia, had been truthful.

After revealing what Defendant had done, Audrey met with

Sergeant Gail Shull of the Roxboro Police Department’s criminal

investigation unit. According to Sergeant Shull, Audrey’s

statements during this meeting were “consistent with” her

testimony at trial. Shortly after meeting with Audrey, Sergeant

Shull contacted Defendant. He agreed to meet with Sergeant Shull

to discuss the allegations and, while doing so, admitted to

having intercourse with Audrey on at least two occasions. -4- At the conclusion of the trial, Defendant was found guilty

of two counts of statutory rape and two counts of statutory

sexual offense. He was sentenced to 240 to 297 months in prison

for each conviction, with credit for 509 days served in pre-

trial confinement. Defendant gave notice of appeal in open

court.

Discussion

On appeal, Defendant argues that the trial court (1) erred

or, in the alternative, committed plain error by repeatedly

referring to Audrey as “the victim” in its jury charge and (2)

plainly erred in allowing Sergeant Shull to testify that her

pre-trial discussion with Audrey was “consistent with” Audrey’s

testimony at trial. Alternatively, Defendant asserts that his

trial counsel’s failure to address these issues constituted

ineffective assistance of counsel (“IAC”). We find no error on

the trial court’s use of the phrase “the victim,” no prejudicial

error as to the admission of Sergeant Shull’s testimony, and

overrule Defendant’s IAC argument.

I. Use of the Phrase “the Victim”

In its charge to the jury, the trial court used the phrase

“the victim” multiple times to describe the crimes of statutory

rape and statutory sexual offense. Defendant admits that he -5- failed to object to the court’s use of that phrase at trial.

Nonetheless, Defendant argues as a preliminary matter that the

issue is reviewable de novo on appeal because it affects the

trial court’s “statutory duty not to set out only one party’s

contention or to express an opinion on the evidence.” We

disagree.

As a general rule, a party must present a timely objection

to the trial court in order to preserve an issue for appellate

review. N.C.R. App. P. 10(a)(1).

In criminal cases, [however,] an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action . . . may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.

N.C.R. App. P. 10(a)(4). Plain error arises when the error is

“so basic, so prejudicial, so lacking in its elements that

justice cannot have been done . . . .” State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal

quotation marks omitted). “Under the plain error rule, [the]

defendant must convince [the appellate court] not only that

there was error, but that absent the error, the jury probably

would have reached a different result.” State v. Jordan, 333

N.C. 431, 440, 426 S.E.2d 692, 697 (1993). -6- This Court has previously held that “the trial court’s

reference to the prosecuting witness as ‘the victim’ [is not

reviewed] for anything other than plain error where [the]

defendant failed to object and properly preserve the issue for

review.” State v. Phillips, __ N.C. App. __, __, 742 S.E.2d 338,

341 (2013). We are bound by that decision. In re Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Therefore,

Defendant’s argument as it pertains to the standard of review is

overruled, and we proceed with an analysis for plain error.

Defendant argues that the trial court’s use of the phrase

“the victim” constitutes plain error because

the [trial] court’s repeated characterization of [Audrey] as “the victim” subtly and inadvertently yet impermissibly suggested that, in the trial court’s view, the [S]tate had met its burden of proving that a crime was committed. This inadvertent bolstering of [Audrey’s] credibility was a fundamental error, equivalent to designating the defendant as “the perpetrator” and had a probable impact on the verdict.

For support, Defendant cites N.C. Gen. Stat. §§ 15A-1222, -1232.

Both sections forbid a trial judge from expressing an opinion on

the evidence in the presence of the jury. N.C. Gen. Stat. §§

15A-1222, -1232 (2013). Defendant also cites a number of cases

from other states specifically holding that the use of the term -7- “the victim” constitutes an impermissible judicial expression of

opinion. In this case, Defendant’s argument lacks merit.

Our courts have long held that the use of the phrase “the

victim” in the trial court’s pattern jury charge does not

constitute prejudicial error. See State v. Jones, __ N.C. App.

__, __, 752 S.E.2d 212, 214–15 (2013) (collecting cases and

holding that “the trial court did not commit plain error when it

used the term ‘victim’ in its instruction to the jury on the

offenses of first- and second-degree rape”) (citations omitted),

disc. review denied, __ N.C. __, __ S.E.2d __ (2014), available

at 2014 WL 939074; see also State v. Jackson, 202 N.C. App. 564,

568–69, 688 S.E.2d 766, 769 (2010) (holding that the trial

court’s use of the word “victim” in its jury instruction was not

an improper expression of judicial opinion on the offense of

taking indecent liberties with a child and statutory rape)

(citations omitted). Though we have recently held that a trial

court erred by using the phrase “the victim” in its jury

instructions, State v. Walston, __ N.C. App. __, __, 747 S.E.2d

720, 727–28 (2013) (finding error when the issue of “whether

sexual offenses occurred was a disputed fact for the jury to

resolve”), disc. review allowed, __ N.C. __, 753 S.E.2d 666

(2014), Defendant concedes that Walston is distinct from other -8- cases in which we have held that the use of the term “the

victim” is not error. See, e.g., State v. Boyette, __ N.C. App.

__, 735 S.E.2d 371 (2012). Defendant also concedes that the

trial court’s use of the phrase “the victim” comports with the

North Carolina Pattern Jury Instructions and fails to provide

any North Carolina cases supporting a departure from the case

law discussed above.

Moreover, we note that Defendant admitted to two acts of

intercourse with Audrey. Such acts constitute crimes in North

Carolina. See, e.g., N.C. Gen. Stat. § 14-27.7A(a) (“A defendant

is guilty . . . [of statutory rape under this section] if the

defendant engages in vaginal intercourse or a sexual act with

another person who is 13, 14, or 15 years old and the defendant

is at least six years older than the person . . . .”).

Therefore, even accepting the validity of Defendant’s argument

as evidenced by his citation to the Connecticut Supreme Court’s

opinion in State v. Cortes, “references to the complainant as

the ‘victim’ [are] inappropriate where the very commission of a

crime is at issue.” 276 Conn. 241, 249 n.4, 885 A.2d 153, 158

n.4 (2005) (citations omitted; emphasis added). Here, whether

Defendant committed some crime against Audrey was not at issue.

Thus, under any measure, the trial court did not err, much less -9- plainly err, in referring to Audrey as “the victim.”

Accordingly, Defendant’s first argument is overruled.

II. Sergeant Shull’s Testimony

Second, Defendant contends that the trial court committed

plain error in allowing Sergeant Shull to testify that Audrey’s

unsworn out-of-court statements regarding the two incidents were

“consistent with” Audrey’s testimony at trial. For support,

Defendant asserts that Sergeant Shull’s testimony constituted an

improper and prejudicial statement of opinion by a lay witness

pursuant to State v. Norman, 76 N.C. App. 623, 626–27, 334

S.E.2d 247, 249–50 (ordering a new trial when the issue was

properly preserved for appellate review on grounds that the

second witness should have been asked, “at the least,” to recall

the substance of the first witness’s pre-trial statements before

giving his opinion as to whether the first witness’s trial

testimony was consistent), disc. rev. denied, 315 N.C. 188, 337

S.E.2d 863 (1985) and State v. Ramey, 318 N.C. 457, 467–73, 349

S.E.2d 566, 572–76 (1986) (holding that the witness’s testimony

that the victim had never told him anything inconsistent was

inadmissible, but did not rise to the level of prejudicial error

and, therefore, concluding that the defendant “received a fair -10- trial free from prejudicial error”). Again, we conclude that

Defendant’s argument lacks merit.

Defendant admittedly failed to object to Sergeant Shull’s

testimony at trial. Therefore, as discussed above, the issue is

reviewable only for plain error. Given the plain error analysis

required in this case and pursuant to the decision upon which

Defendant himself relies, we need not delve into a discussion of

the admissibility of Sergeant Shull’s testimony. The Norman case

was decided on a preserved issue and, thus, is not applicable to

the plain error analysis we must use here. Furthermore, the

Ramey case concluded that, while the trial court erred in

admitting the testimony, such error was not sufficient to

constitute plain error. Thus, even if Sergeant Shull’s testimony

was inadmissible in this case, a new trial could only be

required if that testimony was so prejudicial as to have

probably affected the outcome of the trial. We hold that it was

not.

Plain error is error that reaches to the core of the case

and casts significant doubt on the verdict rendered and the

justness of that decision. Here, Sergeant Shull’s testimony that

Audrey’s pre-trial statements were “consistent with” Audrey’s

trial testimony did not carry such an impact as to prejudice -11- Defendant in that way. Audrey’s testimony is internally

consistent and provides sufficient detail regarding the nature

of Defendant’s actions to justify the jury’s verdict. In

addition, Sergeant Shull offered uncontested testimony that

Defendant admitted to having sex with Audrey on at least two

occasions. Defendant failed to present any evidence of his own.

Thus, even if the jury had not heard that Audrey’s original

statements to Sergeant Shull were consistent with her testimony

at trial, it is inconceivable that it would have come to a

different conclusion. Therefore, to the extent Sergeant Shull’s

testimony about her pre-trial discussion with Audrey may have

been inadmissible, we hold that such error was not so basic and

so prejudicial that the trial court should have stricken it ex

mero motu. The challenged testimony simply had no effect on the

jury’s verdict. Accordingly, Defendant’s second argument is

overruled.

III. Ineffective Assistance of Counsel

Lastly, Defendant argues in the alternative that he was

denied effective assistance of counsel on both of the issues

described above because of his trial counsel’s failure to

object. We disagree. -12- “IAC claims brought on direct review will be decided on the

merits when the cold record reveals that no further

investigation is required . . . .” State v. Fair, 354 N.C. 131,

166, 557 S.E.2d 500, 524 (2001) (citations omitted), cert.

denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).

To successfully assert an [IAC] claim, [the] defendant must satisfy a two-prong test. See Strickland v. Washington, 466 U.S. 668, 687, . . . 80 L. Ed. 2d 674, 693 (1984). First he must show that counsel’s performance fell below an objective standard of reasonableness. Second, once [the] defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different.

State v. Harris, __ N.C. App. __, __, 729 S.E.2d 99, 106

(certain citations omitted), disc. review denied, 366 N.C. 409,

735 S.E.2d 339 (2012). “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome.’”

State v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010)

(citing Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).

We have already determined that the trial court’s use of

the words “the victim” in its jury charge was not error.

Therefore, Defendant’s trial counsel did not act unreasonably in

not objecting to the court’s charge because the court’s use of

the phrase “the victim” was not erroneous. Accordingly, -13- Defendant’s ineffective assistance of counsel argument is

overruled as it pertains to the trial court’s use of the phrase

“the victim.”

On the issue of Sergeant Shull’s testimony, we failed to

address Defendant’s argument on the merits. Instead, we held

that it was not plain error for the trial court to decline to

strike Sergeant Shull’s testimony because that testimony would

not have affected the result. On appeal, Defendant argues that

we may not apply our decision under the plain error standard to

our decision regarding IAC because the two standards are

different and “[t]his Court is not at liberty to impose a

standard stricter than Strickland.” This argument is without

merit.

In order to show ineffective assistance of counsel, the

complaining party must show a “reasonable probability” that the

result would have been different. Harris, __ N.C. App. at __,

729 S.E.2d at 106 (emphasis added). As discussed above, we

believe it is unlikely that the result of the trial would have

been different if Defendant’s trial counsel had objected to

Sergeant Shull’s testimony and that testimony had been stricken.

For the same reasons, we do not believe that there is a

“reasonable probability” that the result would have been -14- different had the testimony been stricken. Therefore,

Defendant’s IAC argument is overruled. Defendant had a fair

trial, free of prejudicial error.

NO ERROR in part; NO PREJUDICIAL ERROR in part.

Judges GEER and ERVIN concur.

Report per Rule 30(e).